ASHOK BHUSHAN, PRAKASH KRISHNA, JJ. - (1.) HEARD Shri Dhananjay Awasthi, learned counsel for the appellant and Shri S.D.Singh, learned counsel for the respondent. This appeal under section 260 -A of the Income Tax Act has been filed against the order dated 29.2.2008 passed by the Income Tax Appellate Tribunal in I.T.A No. 408/LUC/2007 for assessment year 1998 -1999.
(2.) THE Assessing Officer by assessment order dated 31.3.2006 has made addition of Rs.12,91,432/ - in the income of the assessee as an unexplained investment. The assessee had purchased a immovable property for payment of consideration of Rs.5 lacs as was recorded in the sale deed. The Assessing Officer obtained the report from DVO who had estimated the value of the property at Rs.17,91,432/ -. After receiving the valuation report , the Assessing Officer observed that the difference of the value is unexplained investment and no satisfactory explanation having been given by the assessee. An appeal was filed by the assessee to the CIT(A) who vide order dated 19.3.2007 has partly allowed the appeal. In so far as the addition of Rs.12,91,432/ -, the appellate authority has held in paragraph 13 which is as follows: "13. I have considered the facts of the case and arguments placed before me. There is no rule of law to the effect that the value determined for the purpose of stamp duty is the actual cost of the consideration passing between the parties to a sale. To bring a case in the net of section 69 of the Act, it has to be shown not only that the fair market value of the assets as on the date of purchase was more than the value declared by the assessee, but also that the amount paid has been understated and the assessee has actually paid more than what is declared by him/her. The burden is on the department to show that these two conditions are satisfied. The burden to show that thee is no understatement of the investment cannot be casted on the assessee, without bringing on record that the seller of the property in fact, received more than what has been declared by the purchaser. In the present case, neither the statement of seller Shri Amar Nath was recorded nor any material has been brought on record to show that the actual consideration passed between the two parties was more than what has been declared by the appellant. In view of these facts, I am of the opinion that the addition of Rs.12,91,432/ - made only on the basis of valuation report cannot be sustained. Therefore, it is deleted. " The only submission pressed by the learned counsel for the Department is that addition of the amount of Rs.12,91,432/ - in the income of the assessee was rightly made by the Assessing Officer and Appellate Authority committed error in setting aside the said order.
(3.) THE learned counsel for the Department submitted that the said amount was unexplained investment within the meaning of Section 69 of the Income Tax Act, hence has rightly been added in the income of the assessee. He submits that the fact that the DVO has estimated the value of the property at Rs.17,91,432/ -. It is clearly indicated that the property was owned by the assessee and the difference was liable to be added as unexplained investment.;